HENRY E. INGRAM, JR., PETITIONER V. UNITED STATES OF AMERICA
CLIFFORD BRANTLEY, PETITIONER V. UNITED STATES OF AMERICA
No. 85-2003 and 85-2150
In the Supreme Court of the United States
October Term, 1986
On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Opinion below
Jurisdiction
Questions Presented
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (85-2003 Pet. App. 39-57) /1/
is reported at 777 F.2d 159.
JURISDICTION
The judgment of the court of appeals was entered on November 7,
1985, and a petition for rehearing was denied on April 2, 1986 (Pet.
App. 58-59). The petitions for a writ of certiorari were both filed
on June 2, 1986. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(l).
QUESTIONS PRESENTED
1. Whether petitioners' conspiracy convictions under the Hobbs Act,
18 U.S.C. 1951, were correctly sustained where petitioners' purported
victims were actually federal agents and the object of the conspiracy
was thus impossible to achieve.
2. Whether the Hobbs Act covers only extortionate conduct that
adversely affects interstate commerce.
3. Whether the evidence was sufficient to support petitioner
Ingram's conspiracy conviction under the Hobbs Act.
4. Whether the selection of the jury from a districtwide pool
violated petitioners' rights under the Sixth Amendment or the Jury
Selection and Service Act, 28 U.S.C. 1861 et seq.
5. Whether the district court erred by failing to instruct the jury
on the law of entrapment.
STATEMENT
Following a jury trial in the United States District Court for the
District of South Carolina, petitioners were convicted on one count of
extortion and one count of conspiring to commit extortion, both in
violation of the Hobbs Act, 18 U.S.C. 1951. Petitioner Ingram was
sentenced to concurrent four-year terms of imprisonment on the two
counts. Petitioner Brantley was sentenced to concurrent terms of
imprisonment of five and seven years, respectively, on the two counts,
and a $2200 fine. The court of appeals reversed petitioners'
convictions on the substantive extortion count, but affirmed their
convictions on the conspiracy count (Pet. App. 39-57).
1. The evidence at trial, as summarized in the opinion of the court
of appeals (Pet. App. 41-44), showed that FBI Agent Theodore Domine
was dispatched to South Carolina from the FBI's Cleveland office to
conduct an undercover investigation of reported corruption on Hilton
Head Island. Agent Domine posed as a gambler who was interested in
opening and operating a casino, for which he needed the "protection"
of local law enforcement officials. Petitioner Ingram, a local owner
of gambling devices, suggested that the agent consider locating the
gambling operation in a vacant restaurant in Hardeeville, a small town
in Jasper County, South Carolina. Ingram said his friend, petitioner
Brantley, was the sheriff of Jasper County and that Brantley would
protect the gambling operation if he were paid $500 per month. Ingram
also proposed that the agent give Brantley $200 at their first meeting
as a gesture of good faith (id. at 42).
Ingram and Agent Domine subsequently visited Brantley at his
office. Domine explained that he intended to rent the vacant
restaurant in Hardeeville and, once a month, to invite persons from
Cleveland, New York, and Chicago to gamble there at high stakes.
Brantley approved the proposal but insisted that it not involve any
local persons. At the conclusion of the meeting, Ingram handed
Sheriff Brantley $200 that Agent Domine had given him for that purpose
(Pet. App. 42-43).
After Agent Domine rented the vacant restaurant, he arranged for
gaming tables and other gambling equipment to be delivered from the
FBI training academy in Virginia. He also stocked a bar with liquor
furnished by the FBI. Thereafter, six to eight FBI agents, posing as
gamblers, assembled at the club once each month for the next four
months. They gambled and purchased drinks with money supplied by the
FBI. In addition, once each month Agent Domine met with Sheriff
Brantley, reported that the casino was operating as planned, and paid
the Sheriff $500 (Pet. App. 43-44).
2. Petitioners were convicted of both extortion and conspiracy to
commit extortion. On appeal, the court of appeals reversed
petitioners' convictions on the substantive count but affirmed their
convictions for conspiracy.
The court of appeals reversed on the substantive count because it
found that petitioners' acts of extortion had not actually affected
interstate commerce (Pet. App. 45). Neither the liquor nor the
gambling devices that the FBI transported to South Carolina were the
subjects of commercial transactions, the court held. The prosecution
had therefore failed to show that petitioners had obstructed, delayed,
or affected commerce, within the meaning of the Hobbs Act, 18 U.S.C.
1951. Pet. App. 44-49. Relying on United States v. Archer, 486 F.2d
670 (2d Cir. 1973), moreover, the appellate court held that "federal
agents may not manufacture jurisdiction by contrived or pretensive
means" (Pet. App. 49). Thus, because "(i)t was wholly unnecessary (to
the extortion scheme) for the FBI to move gambling equipment from
Virginia to South Carolina, or to have its agents pretend to gamble
and to purchase whiskey," the court of appeals found no effect on
interstate commerce and thus no "commercial predicate for federal
jurisdiction" (id. at 50).
With regard to the conspiracy convictions, the court of appeals
reached a different conclusion. As with other conspiracy statutes,
the court held, "a conviction of conspiring to obstruct commerce in
violation of the Hobbs Act may be founded upon proof of an agreement
to engage in conduct which would violate the statute" (Pet. App. 51).
Thus, even though the object of the conspiracy could not be attained
and the conspiracy therefore could have had no actual effect on
interstate commerce, petitioners could still be guilty of conspiracy,
as long as the unlawful agreement contemplated an effect on interstate
commerce. In this case, the court of appeals noted, petitioners
anticipated that the "(p)atronage of non-residents was to be sought,
while local people were to be excluded from participation" in the
gambling enterprise (id. at 55). Petitioners' agreement therefore
contemplated a substantial effect upon interstate commerce. While
petitioners may have been "the victims of pretense in the discription
of the project," the court concluded that that did not "sanitize their
* * * willing participation in a conspiracy to violate the Hobbs Act"
(id. at 56). /2/
ARGUMENT
1. The court of appeals correctly upheld petitioners' Hobbs Act
conspiracy convictions. Moreover, the court's decision is not in
conflict with the decisions of this Court or any other circuit.
Accordingly, further review by this Court is unwarranted.
The involvement of federal agents prevented petitioners from
realizing the object of their conspiracy. Nevertheless, the court of
appeals upheld petitioners' conspiracy convictions because their
conspiratorial agreement contemplated conduct that "would have had
more than an adequate effect upon commerce" (Pet. App. 56). Every
circuit court that has considered this issue has reached the same
conclusion: defendents may be convicted of violating the Hobbs Act
even where, because of the involvement of federal agents, it is
impossible for the defendants to carry out the object of the
conspiracy. See United States v. Holmes, 767 F.2d 820 (11th Cir.
1985); United States v. Brooklier, 685 F.2d 1208, 1216-1217 (9th Cir.
1982), cert. denied, 459 U.S. 1206 (1983); United States v. Jannotti,
673 F.2d 578, 590-594 (3d Cir.), cert. denied, 457 U.S. 1106 (1982);
see also United States v. Rindone, 631 F.2d 491 (7th Cir. 1980);
United States v. Frazier, 560 F.2d 884 (8th Cir. 1977), cert. denied,
435 U.S. 968 (1978).
Petitioners contend, in essence, that a conspiracy to violate the
Hobbs Act is no different from a substantive violation of that Act.
If the substantive crime cannot be carried out because of the
involvement of undercover agents, they argue, the government may not
prosecute the unlawful agreement to carry out that substantive crime.
But this claim overlooks the fact that the conspiracy and substantive
provisions of the Hobbs Act constitute two separate crimes "composed
of differing components" (Callanan v. United States, 364 U.S. 587, 597
(1961)). The distinction between a substantive offense and a
conspiracy to commit it results in many instances in which particular
conduct can be prosecuted under one provision but not the other. See
Jannotti, 673 F.2d at 593; United States v. Rose, 590 F.2d 232 (7th
Cir. 1978), cert. denied, 442 U.S. 929 (1979) (conspiracy conviction
affirmed despite the fact that involvement of FBI agents prevented
theft of goods from taking place).
This Court made the same point in a closely analogous setting. In
Osborn v. United States, 385 U.S. 323 (1966), an attorney sought to
bribe a member of a jury panel in a prospective criminal case.
Unbeknownst to the attorney, the person through whom he sought to pass
the bribe was cooperating with federal agents. After his conviction,
the attorney argued, as petitioners do here, that because of the
involvement of federal agents the actual bribe scheme was "impossible
of accomplishment" (385 U.S. at 332). Noting that the attorney had
been charged simply with "endeavoring" to effect the bribe, this Court
rejected the impossibility defense. Because the statute reached all
"endeavors" to corrupt a juror, the Court found that it was
unnecessary for the government to prove that there was some risk that
the juror would actually be corrupted. It was enough that the
defendant had the intent to commit the offense and took stpes to
realize this unlawful objective. Id. at 333. The same analysis
applies to a prosecution for conspiracy; as long as the conspirators
share an unlawful purpose and enter into an agreement to achieve that
purpose, the offense is complete, regardless of whether there is any
realistic likelihood that the object of the conspiracy will ever be
attained. /3/
2. Petitioner Brantley, while conceding that "interstate commerce
would have been affected by the proposed gambling establishment,"
insists that the venture would not have adversely affected commerce
(85-2150 Pet. 12). Because in his view "the federal government has no
interest in prosecuting a crime that has, either actually or
potentially, only a favorable impact on interstate commerce" (ibid.),
Brantley asserts that petitioners' conspiracy may not be prosecuted
under the Hobbs Act.
As petitioner frankly acknowledges, this argument essentially asks
the Court to "engraft() the word 'adversely' into the meaning of the
Hobbs Act" (ibid.). There is neither precedent nor warrant for
restricting the scope of the Act in that fashion. The Hobbs Act
"speaks in broad language, manifesting a purpose to use all the
constituional power Congress has to punish interference with
interstate commerce" (Stirone v. United States, 361 U.S. 212, 215
(1960)). This Court has expressly refused to limit the broad reach of
the Hobbs Act by reading into it qualifying language that simply is
not there. In United States v. Culbert, 435 U.S. 371 (1978), the
Court rejected the contention that conduct otherwise satisfying the
elements of a Hobbs Act violation must also consitute "racketeering"
in order to fall within the Act. The Court found that the statutory
language did "not lend (itself) to restrictive interpretation" (435
U.S. at 373). Rather, the language "sweeps within it all persons who
have 'in any way or degree * * * affect(ed) commerce * * * by robbery
or extortion'" (ibid., quoting 18 U.S.C. 1951(a)).
The Hobbs Act, on its face, covers all acts of extortion that
"affect commerce." There is no textual basis on which to restrict the
statutory language as Brantley urges. Moreover, the decision of the
court of appeals is consistent with the decision in every other case
that has addressed the issue. See, e.g, United States v. Mattson, 671
F.2d 1020, 1024 (7th Cir. 1982) ("(e)ven a beneficial effect on
interstate commerce, e.g., facilitating the flow of building materials
across state lines, is within the prohibition of the statute");
Jannotti, 673 F.2d at 590; United States v. Kuta, 518 F.2d 947 (7th
Cir.), cert. denied, 423 U.S. 1014 (1975); United States v. Staszcuk,
517 F.2d 53, 58 (7th Cir.) (en banc), cert. denied, 423 U.S. 837
(1975). Further review is unwarranted.
3. Petitioner Ingram asserts (Pet. 24-28) that the evidence
supporting his conspiracy conviction was insufficient because the
government failed to show that the conspiracy had "a probable effect
on interstate commerce" (id. at 27). This claim, however, simply
restates in another guise petitioner's initial contention that there
cannot be a Hobbs Act conspiracy where the object of the scheme is
incapable of being realized. As we noted above (see pages 5-7,
supra), the conspiracy here plainly contemplated that there would be
an effect on interstate commerce. The court of appeals so found, and
its conclusion, based on this record, does not deserve further
consideration. /4/
4. Petitioner Ingram contends (Pet. 28-31) that the selection of
his jury from the entire district of South Carolina, rather than from
just the Charleston division, denied him his rights under the Sixth
Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C.
1861 et seq.
The Jury Selection and Service Act guarantees the random selection
of juries "from a fair cross section of the community in the district
or division wherein the court convenes" (28 U.S.C. 1861).
Petitioner's jury was selected from a pool comprised of persons from
the entire district. The jury selection system used in this case
therefore complied with the plain terms of the Act.
Petitioner is equally mistaken in contending that the
jury-selection process failed to provide a "fair cross section of the
community" within the meaning of the Sixth Amendment. Petitioner does
not dispute that his jury was selected from a "fair cross section of
the community" within the meaning of the Sixth Amendment. Petitioner
does not dispute that his jury was selected from a "fair cross
section" of the district. Nor does he assert that the trial court's
decision to draw the jury pool from the entire district -- rather than
just the Charleston division -- was somehow intended to deprive him of
his rights. Petitioner simply contends that by drawing the jury from
a statewide rather than a local pool, the trial judge caused "a
substantial reduction of non-white qualified jurors" (Pet. 30). Even
if true, this claim does not make out a violation of the Sixth
Amendment. See Savage v. United States, 547 F.2d 212, 215-216 (3d
Cir. 1976), cert. denied, 430 U.S. 958 (1977). By its terms, the
Sixth Amendment requires only that the jury be selected from "the
State and district wherein the crime shall have been committed." While
the Sixth Amendment has been held to be satisfied by the selection of
juries from only a single division within a district, see Ruthenberg
v. United States, 245 U.S. 480, 482 (1918), there is obviously nothing
wrong with a jury-selection system that complies with the strict terms
of the Amendment by providing for juries to be selected from the
entire district.
5. Finally, petitioner Ingram renews his claim (Pet. 32-36) that
the district court erred by failing to instruct the jury on the law of
entrapment.
In United States v. Russell, 411 U.S. 423 (1973), this Court
observed that "entrapment is a relatively limited defense" and is
available only to those defendants who have "committed all the
elements of a proscribed offense, but (were) induced to commit them by
the Government" (411 U.S. at 435). The courts uniformly hold that
before a defendant is entitled to an entrapment instruction, he must
first produce some evidence that the government induced him to commit
the offense. See, e.g., United States v. Busby, 780 F.2d 804, 806
(9th Cir. 1986); United States v. Nations, 764 F.2d 1073, 1079-1080
(5th Cir. 1985); United States v. Rodgers, 755 F.2d 533, 550-551 (7th
Cir. 1985), cert. denied, No. 84-6500 (July 1, 1985); United States
v. Kakley, 741 F.2d 1, 3 (1st Cir. 1984), cert. denied, No. 84-5341
(Oct. 9, 1984); United States v. Bagnell, 679 F.2d 826, 835 (11th
Cir. 1982), cert. denied, 460 U.S. 1047 (1983). Cf. Lopez v. United
States, 373 U.S. 427, 434-435 (1963) ("before the issue of entrapment
can fairly be said to have been presented in a criminal prosecution
there must have been at least some showing of the kind of conduct by
government agents which may well have induced the accused to commit
the crime charged"). Reviewing the record in this case, the court of
appeals concluded (Pet. App. 56) that Ingram did not make a factual
showing sufficient to merit an entrapment instruction.
While admitting that he had twice accepted cash from Agent Domine
on behalf of Sheriff Brantley (4 Tr. 195, 204), petitioner Ingram
never claimed that he was induced to do so. Rather, he repeatedly
denied that he had joined a scheme to protect an illegal gambling
operation, and he insisted that there was no connection between his
acceptance of cash from Agent Domine and the operation of the casino
(id. at 193-195, 204-205, 221-223, 231, 234, 239, 241). Ingram even
professed surprise that the agent had given Brantley money (id. at
200). In short, as the court of appeals concluded, petitioner failed
to adduce evidence sufficient to require an entrapment instruction to
the jury. /5/ The court's analysis of the record and its fact-bound
conclusion warrant no further review by this Court.
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
MAURY S. EPNER
Attorney
AUGUST 1986
/1/ Unless noted otherwise, all citations to "Pet. App." will refer
to the petition filed in No. 85-2003.
/2/ The court of appeals also rejected the assertion that the
district court should have instructed the jury on the law of
entrapment, concluding that "(t)here was insufficient evidence of
entrapment to warrant an instruction on the subject" (Pet. App. 56).
/3/ Petitioner nevertheless asserts (Pet. 20-21, 23) that the
decision of the court of appeals sustaining his conspiracy conviction
conflicts with the holding in United States v. Mattson, 671 F.2d 1020
(7th Cir. 1982). In Mattson, the Seventh Circuit overturned a Hobbs
Act conspiracy conviction because "(t)he victim in th(at) case was an
individual who had no connection with interstate commerce at all * * *
" (671 F.2d at 1025). Mattson could not be charged with conspiring to
violate the Hobbs Act because the bribe he accepted neither affected
nor was meant to affect interstate commerce. By contrast,
petitioners' agreement to extort protection money from Agent Domine
contemplated that Domine's illegal casino would be patronized
exclusively by gamblers from outside South Carolina. An effect on
interstate commerce was therefore an integral part of the agreement in
this case, but was no part at all of the agreement in Mattson. There
is accordingly no conflict between the decision of the Fourth Circuit
in this case and that of the Seventh Circuit in Mattson.
/4/ This Court's decision in United States v. Feola, 420 U.S. 671
(1975), from which petitioner quotes extensively (Pet. 25-27), is not
to the contrary. There, the Court held that one may be guilty of
conspiracy to assault a federal officer, in violation of 18 U.S.C.
371, without specifically knowing that the victim was a federal
officer. In the course of its decision, the Court noted that while
the defendant need not know the federal status of his victim, the
government must nevertheless show that the defendant knew enough about
his intended victim so that it may be fairly said that the
"unfulfilled agreement to assault, * * * standing alone, constituted a
sufficient threat to the safety of a federal officer so as to give
rise to federal jurisdiction" (420 U.S. at 695). Petitioner relies on
this language to support his claim that there was insufficient
evidence that the conspiracy in this case constituted enough of a
threat to interstate commerce to provide federal jurisdiction. But
petitioner misconstrues the quoted language from Feola. The Court
simply stated that a conspiratorial agreement must contemplate conduct
which, if realized, would satisfy the jurisdictional threshold; the
court of appeals in this case concluded that this conspiracy met that
test, and its decision on that point is amply supported by the record.
/5/ Ingram cites only one part of the record as having sufficiently
raised an entrapment defense -- that in his own testimony at trial he
had "explain(ed) that he did not understand why those actions (he had
taken) were against the law" (Pet. 34). Plainly, that disclaimer has
nothing to do with any alleged inducement by the government.